cancellation of registration DO18.docx

REPUBLIC OF THE PHILIPPINES Department of Labor and Employment National Capital Region DOLE-NCR Building, 967 Maligaya Street, Malate, Manila

IN RE: CANCELLATION OF REGISTRATION UNDER DEPARTMENT ORDER NO. 18-A CASE NO.: NCR-18-A1818-11-16 AMP AND SONS GENERAL SERVICES, INC., Respondent, PRICEWIDE, INC., Principal. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - x

POSITION

PAPER

This Position Paper is being respectfully submitted by AMP AND SONS GENERAL SERVICES, INC. in compliance with the Notice of Conference issued by the Department of Labor and Employment dated November 22, 2016 requiring the filing of a Position Paper/ Comment to the Notice of Results dated September 22, 2016 regarding D.O. No. 18-A, Series of 2011. This Position paper seeks to controvert the findings stated in said Notice. THE PARTIES AMP

AND

SONS

GENERAL

SERVICES,

INC.

(hereinafter referred to as “AMP AND SONS” for brevity), is a corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines, with principal address at Block 4 Lot 4, 1st Lane, Castle Spring Heights, Camarin, Caloocan city, Philippines. AMP AND SONS is

represented in this case by its authorized representative ALMA VELA DEL ROSARIO. PRICEWIDE, INC. is a corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines with principal address at 1129 Natividad Almeda Lopez St., Ermita, Manila.

BACKGROUND OF THE CASE A contractual relationship exists between AMP & SONS and PRICEWIDE, INC. As shown by the Service Agreement hereto attached as ANNEX “A”. PRICEWIDE, INC. agreed to farm out and put out jobs, services or work with AMP & SONS the performance or completion of a specific job within a predetermined period. Under the Service Agreement, PRICEWIDE, INC. requires private engineering services for its establishment known as the Manila Real Residences located at 1129 Natividad Almeda Lopez St., Ermita, Manila. As discussed below, AMP & SONS is a legitimate job contractor carrying a distinct and independent business. It undertakes to perform the job, work or service on its own responsibility, according to its own manner and method, and free from control and direction of the principal in all matters connected with the performance of the work except as to the results thereof. It has substantial capital and/or investment; and the Service Agreement between AMP & SONS and PRICEWIDE, INC. ensures compliance with all the rights and benefits under Labor Laws.

DISCUSSION The whether

test one

of

independent

claiming

to

be

contractorship an

is

independent

contractor has contracted to do the work according to his own methods and without being subject to the control of the employer, except only as to the results of the work.1 In San Miguel Corporation v. Semillano2, the Court laid down the criteria in determining the existence of an independent and permissible contractor relationship, to wit: x x x [W]hether or not the contractor is carrying on an independent business; the nature and extent of the work; the skill required; the term and duration of the relationship; the right to assign the performance of a specified piece of work; the control and supervision of the work to another; the employer’s power with respect to the hiring, firing and payment of the contractors workers; the control of the premises; the duty to supply the premises, tools, appliances, materials, and labor; and the mode, manner and terms of payment. 3 Simply put, the totality of the facts and the surrounding circumstances of the case are to be 1 San Miguel Corporation v. Aballa, G.R. No. 149011, June 28, 2005,

461 SCRA 392, 421. 2 G.R. No. 164257, July 5, 2010, 623 SCRA 114. 3 San Miguel Corporation v. Semillano, supra, at 124; Sasan, Sr. v.

National Labor Relations Commission 4th Division, supra note 41, at 691.

considered. Each case must be determined by its own facts and all the features of the relationship are to be considered.4 If the surrounding circumstances and totality of the facts would be considered, there can be no other conclusion than that AMP & SONS is a legitimate job contractor. Applying the foregoing tests, it is respectfully submitted that AMP & SONS is a legitimate job contractor: AMP & SONS has substantial capital or investment. First,

AMP

investment.

&

SONS

has

substantial

capital

or

The equipment and machineries used in the

performance of the contracted job are owned by AMP & SONS. This is vital fact which only shows that AMP & SONS does not depend on the PRICEWIDE, INC. with respect to the tools and equipment used by the workers. AMP & SONS carries a distinct and independent business. AMP & SONS has a separate personality distinct from PRICEWIDE, INC. It is registered as a separate entity independent from any control by another organization. Attached hereto as ANNEX “B” is a copy of its Certificate of Incorporation

issued

by

the

Securities

and

Exchange

Commission under Company Reg. No. CS201006894. AMP & SONS carries on an independent business and undertakes the performance of its service contract according to its own manner and method, free from the control and supervision of PRICEWIDE, INC.

4 Sasan, Sr. v. National Labor Relations Commission 4th Division, supra

note 41, at 691.

The following circumstances bolster AMP & SONS’ claim that it is a legitimate job contractor: First, the nature and extent of the work of the workers is clearly specified under the Service Agreement. The scope of work of the employees is stated in the “Scope of Work” portion, attached to the Service Agreement as ANNEX “A”. Under the Contract, the following are the general functions of the workers: (a) perform equipment inventory, monitor, evaluate, and recommend necessary corrective measures and/or suggestions for equipment over all performance, (b)

utilize tools and special instruments, (c) utilize equipment’s history card/ record every repair and/ or replacement work undertaken,

(d)

assist

building

administrator

for

the

inspection of constructing and operating tenants, and (e) attend to tenant’s concerns only upon instruction from the Building Administrator. The workers’ tasks also include preventive maintenance program for transfer and fire and jockey

pumps,

preventive

maintenance

program

for

plumbing system, preventive maintenance program for building lightings, stand by generating sets, telephone and sound system, carpentry, masonry, and painting works. The excluded works are also indicated therein. Secondly, the skill required from the workers is also expressly provided. Attached as ANNEX “C” of the Service Agreement is a document entitled “Personnel Qualifications”. AMP & SONS requires its workers (multi-technicians) to meet the following qualifications: (a) Filipino citizen, (b) preferably graduate of vocational/ technical course in a related field (TESDA accredited), (c) with at least one (1) year experience in maintenance and repair operations, (d) knowledgeable in trouble shooting of window type aircon, electrical, plumbing

and

carpentry

works,

(e)

can

work

with

minimum

supervision, (f) age shall be from 21 to 40 years old, (g) physically fit, (h) cleared by law enforcement agency and without previous record and criminal offense including moral turpitude, (i) passed the psychological examinations, and (j) with good moral character. Thirdly, the term and duration of the relationship is also expressly provided under the agreement. The subject Service

Agreement

has

a

duration

of

one

(1)

year

commencing on January 1, 2016 and expiring automatically at the close of business hours on December 31, 2016. Fourth, the right to assign the performance of a specified piece of work belongs to AMP & SONS. Fifth, the control and supervision of the workers is performed by AMP & SONS. To support this claim, the following documents are hereby attached herewith: AMP & SONS Daily Time Monitoring Sheet as ANNEX “C”, Request for Change of Schedule as ANNEX “D”, Summary of Hours Worked as ANNEX “E”. These are evident proof that the workers are under the supervision of AMP & SONS and that control is exclusively exercised by it. The power of hiring, firing and payment of the workers are being exercised by AMP & SONS. Attached herewith as ANNEXES

“F-F2” are copies of notices

addressed to the workers, notifying them of suspension, termination and other disciplinary measures imposed upon them by AMP & SONS. Also attached herewith as ANNEX “G” is a copy of an endorsement letter, to show that the power of hiring belongs to AMP & SONS, and not to PRICEWIDE, INC. Sixth, the payment and mode, manner and terms of payment are made and decided by AMP & SONS. To

substantiate this claim, the following papers are hereby attached

herewith:

SSS

Special

Bank

Receipts

and

Employer’s Contributions Payment Form as ANNEXES “H” and “I” showing that the payor/ employer is AMP & SONS. Also attached as ANNEXES “J”, “K”, “L” and “M” are copies of PAG-IBIG Fund Receipt, Membership Contributions Remittance

Form,

PHILHEALTH

Agent’s

Receipt,

and

Employer’s Remittance Report, showing that the employer/ payor is none other than AMP & SONS. This is a strong indication of control. Also attached as ANNEX “N” is a copy of AMP & SON’s Computation of Payroll for different periods. Lastly, the duty to supply the premises, tools, appliances, materials, and labor is being undertaken and performed by AMP & SONS. Under the Agreement, AMP & SONS shall provide the personnel with the minimum required equipment and supplies enumerated in Annex “E” thereof. In addition, AMP & SONS shall provide the personnel with such other equipment and supplies as may be reasonably necessary to perform the services. CONCLUSION Considering the totality of the facts and the surrounding circumstances of the case, the only logical conclusion is that AMP & SONS passed the control test and therefore, it is an independent and legitimate contractor. Taken as a whole, there can be no doubt that AMP & SONS is engaged in legitimate contracting and it performs the job, work or service on its own responsibility,

according

to its

own

manner and

method, and free from control and direction of the principal

in

all

matters

connected

with

the

performance of the work except as to the results

thereof. It has substantial capital and/or investment and the Service Agreement ensures compliance with all the rights and benefits under Labor Laws. In Meralco v. Quisumbing, 5 the Supreme Court joined the universal recognition of outsourcing as a legitimate activity when it was held that a company can determine in its best judgment whether it should contract out a part of its work for as long as the employer is motivated by good faith; the contracting is not for purposes of circumventing the law; and does not involve or be the result of malicious or arbitrary action. The facts of this case show that the contracting is done in good faith and not for purposes of circumventing the law. In fact, the employment status of the workers involved is regular. Therefore, there is no reason for this Honorable Office to cancel its registration.

PRAYER WHEREFORE,

premises

considered,

it

is

most

respectfully prayed of this Honorable Office, that a Decision be rendered DISMISSING the present case and DECLARING that AMP & SONS is engaged in legitimate job contracting. Other reliefs just and equitable under the premises are also prayed for. RESPECTFULLY SUBMITTED. 5 MANILA ELECTRIC COMPANY, petitioner, vs. THE HONORABLE

SECRETARY OF LABOR LEONARDO QUISUMBING AND MERALCO EMPLOYEES AND WORKERS ASSOCIATION (MEWA), respondents. G.R. No. 127598. January 27, 1999

Caloocan city, December 11, 2016.

ALMA VELA DEL ROSARIO HR Manager/ Authorized representative- AMP & SONS

Copy furnished: PRICEWIDE, INC. Penthouse Tower A Gotesco Regency Twin Towers, 1129 J. Natividad Lopez St., Ermita, Manila.

VERIFICATION I, ALMA VELA DEL ROSARIO , of legal age, Filipino citizen, married, with post office address at Block 4 Lot 4 1 st Lane, Castle Spring Heights, Camarin, Caloocan city, on oath, depose and state that: 1

I am the HR-Manager/ Authorized representative of AMP AND SONS GENERAL SERVICES, INC.;

2 I caused the preparation of the foregoing Position Paper/ Comment; 3 I have read the allegations therein and certify that the same are true and correct of my own personal knowledge and based on authentic documents; IN WITNESS WHEREOF, I have hereunto set my hand this 12th day of December, 2016, at Caloocan City, Metro Manila, Philippines.

ALMA

VELA

DEL

ROSARIO Affiant SUBSCRIBED AND SWORN TO before me this 12th day of December, 2016 at Caloocan City, affiant having exhibited to me his competent evidence of identity by way of SSS I.D. No. 33-2155926-6.

Doc. No._______ Page No.______ Book No. ______ Series of 2016.